Thursday, March 3, 2011

Madison attorneys Lester Pines and Susan Crawford are circulating a memo cataloguing Constitutional, statutory and rule violations committed by Republican legislative leaders since Senate Democrats left the state to prevent a vote on Gov. Walker's budget-repair bill.

Below is the memo's text:

TO: Interested Parties

FROM: Attorneys Lester A. Pines & Susan M. Crawford

DATE: March 3, 2011

Wisconsin State Senate Lacks Authority to Hold Members in Contempt and Order Their Arrest

The Wisconsin Constitution absolutely prohibits members of the Wisconsin Senate from being arrested for a non-criminal offense. The failure or refusal of a senator to attend a session of the senate is not a crime. Nor is it in contempt of the Senate. Moreover, the Senate’s authority to cite any individual for contempt is limited to those offenses listed in Wis. Stat. §13.26(1), none of which have been committed by any of the absent senators. The Wisconsin Senate’s action today in citing fourteen of its members for contempt for their refusal to attend the Senate’s sessions and to issue warrants for their arrest has no basis in the law of this state.

Each house of the Wisconsin Legislature may “compel the attendance of absent members in such manner and under such penalties as each house may provide.” Wis. Const. Art. IV, §7. However, the Wisconsin Constitution confers on each legislator a broad privilege from arrest:

Members of the legislature shall in all cases, except treason, felony and breach of the peace, be privileged from arrest; nor shall they be subject to any civil process, during the session of the legislature, nor for fifteen days next before the commencement and after the termination of each session.

Wis. Const. Art. IV, §15.

Thus, while the Wisconsin Constitution authorizes each house to penalize its members in order to compel their attendance, this power must give way to the constitutional protection bestowed on each member privileging them from arrest or civil process.

None of the fourteen absent senators has been charged with a crime. Nor has any crime occurred. The Wisconsin Senate has absolutely no authority to order any of its members arrested or taken into custody in order to compel their attendance.

Likewise, the Senate’s authority to find a person in contempt is limited by statute. Section 13.26 of the Wisconsin Statutes provides that:

Each house may punish as a contempt, by imprisonment, a breach of its privileges or the privileges of its members; but only for one or more of the following offenses:

(a) Arresting a member or officer of the house, or procuring such member or officer to be arrested in violation of the member’s privilege from arrest.

(b) Disorderly conduct in the immediate view of either house or of any committee thereof and directly tending to interrupt its proceedings.

(c) Refusing to attend or be examined as a witness, either before the house or a committee, or before any person authorized to take testimony in legislative proceedings, or to produce any books, records, documents, papers or keys according to the exigency of any subpoena.

(d) Giving or offering a bribe to a member, or attempting by menace or other corrupt means or device to control or influence a member’s vote or to prevent the member from voting.

(2) The term of imprisonment a house may impose under this section shall not extend beyond the same session of the legislature.

Wis. Stat. §13.26 (1) (emphasis added).

None of those offenses has been committed by any of the absent senators. In fact, were one of the absent senators to be arrested on a warrant issued by Senator Fitzgerald, that action would violate Wis. Stat. §13.26(a) and subject him to being held in contempt of the Senate.

Notably, §13.26 authorizes the order of contempt and imprisonment only of third parties. It does not authorized such an order against members of the legislature It is consistent with, and implicitly acknowledges, the privilege from arrest bestowed on members of the legislature by the Wisconsin Constitution.

The Senate Rules proscribe the lawful procedure by which members may be compelled to be present. Senate Rule 8 authorizes the Sergeant at Arms to “proceed to find and bring in such absentees” upon the Senate’s call to the house. Neither the Senate Rules, the Wisconsin Constitution, nor the Wisconsin Statutes authorize the sergeant at arms to direct law enforcement to arrest a member, under threat or show of force, to compel the attendance of the member.

While the Senate may lawfully impose penalties on its absent members, and may direct the Sergeant at Arms to proceed to find and bring in such members, the Senate has no authority to issue a warrant for the arrest of its members.

Friend - - they are still working, just as they work from home when they are not at the Capitol. There is no law requiring their presence there. There are no hours, no clock to punch. Often the legislature is not in session and they get paid.

Yes, I agree with James. These legislators actaully are doing their work. They were given no other option, as there was no option for debate or input for constituents. The rush to have a vote less than a week from it's presentation on vastly sweeping changes that would give the Governor unprecedented unilateral powers was a farce and a despicable act.

Thanks for this great analysis. I will share it as widely as I can. My senator is one of the "absent" ones and from my experience I can tell you that he and his staff are working harder than they ever have, and making more personal sacrifices, to represent their constituents during this unprecedented Republican power grab.

Collective Bargaining is basically sitting down together and coming to an agreement that both parties can agree to. That is what Protestors from all over Wisconsin and our Nation are fighting for Union-wise. Unions and the citizens who work for us, have already agreed to all the hard-hitting financial cuts. They are fighting for collective bargaining. Those selfish greedy wisconsin unions also have a lot to do with the origin of worker's comp, the 40 hour work week and more. Unions fought to create child labor laws. It is not only Union workers who benefit from these. Unions need always to change and grow with the times, and I believe there are special considerations when people are working for their fellow citizens and not for a profit making business. It is also very important to be aware of other parts of the bill: Like the authority to bypass our rules and statutes and make sweeping changes in our Medicaid programs. The Medicaid programs include SeniorCare, which helps seniors-in-need pay for their perscription drugs, BadgerCare, our commitment that all Wisconsin residents that CANNOT get other insurance, have access to good healthcare, FamilyCare/Partnership which helps frail elders and folks with disabilities in financial need continue to live in their homes and communities. This kind of commitment to all of our citizens could be lost. Though most public workers are not many degrees of separation from needing these services, this is for all of us, and it would be a stain upon all of us if we let these go. The slashes to Public education are not "just" to teacher saleries. The "budget" bill also gets rid of some of the ways we have developed to take good care of our precious land and waters....undoing recycling, phospherous bans, etc.... I deeply hope that our unions don't accept any agreements that don't also address these. I have gone on too long, but these are some highlights and not an entirity. PLease forgive my lousy spelling, no time for spell check-got to get home and take care of my sick partner, who is very frightened this week , of this bill forcing her into a nursing home. Sara

Well, I can see why you are anonymous. Too chicken to stand behind your own name.

I am a private sector worker and I stand behind the brave Union workers ad public workers who have actually read this bill. I would be a years salary, Mr. Anonymous that you haven't even read the bill.

"Imagine that these legislators will gladly accept the salary checks for the work they fled Wisconsin to avoid doing. That's simple fraud -- and it carries a statutory penalty."

They are actually doing the work I voted for them to do: protecting my rights as both a Wisconsin & United States citizen. Personally I don't care where they work from, just as long as they support the will of the people! I support the Fab 14 and their stand against Governor Walker's unfair politics.

Anonymous, those Democratic senators were elected by Democratic majorities in their districts... they are representing their constituents.

But I noticed you ducked every last syllable of the legal opinion citing chapter and verse of the statutes. Maybe you don't think the laws of Wisconsin apply to Republicans?

Besides, *you* actually support these brave Democrats too ...they're doing it to fight for YOUR right to bargain for fair wages. Maybe you don't think you deserve to be treated well in a job? That's okay, we all think you do.

@Anonymous said... "If you consider your "constituents" to only be public sector union workers. Their private sector taxpayers can go eff themselves apparently."

Walker only considers campaign contributors and yes men as his constituents. Thank goodness there are 14 brave Democrats willing to stand up the illegal strongarm tactics Walker and the Fitzgeralds are using. Unless you are mega-rich, those 14 Democrats are protecting your rights and quality of life, too...you are evidently just too deluded to realize our Governor, his cronies and those pulling their puppet strings don't have your interests in mind...at all.

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"A little fill here and there may seem to be nothing to become excited about. But one fill, though comparatively inconsequential, may lead to another, and another, and before long a great body may be eaten away until it may no longer exist. Our navigable waters are a precious natural heritage, once gone, they disappear forever," wrote the Wisconsin Supreme Court in its 1960 opinion resolving Hixon v. PSC and buttressing The Public Trust Doctrine, Article IX of the Wisconsin State Constitution.